FCC Report Concludes Broadband Services Are
Being Deployed in a Reasonable and Timely Fashion

3/19. Federal Communications Commission
(FCC) adopted, but did not release, a Fifth Report regarding the
"availability of advanced telecommunications capability to all Americans".
These reports are required by Section 706 of the Telecommunications Act of 1996.

The FCC issued a short
release [PDF]
that states that this report finds that "broadband services are currently being deployed
to all Americans in a reasonable and timely fashion".

Commissioner Jonathan Adelstein
dissented. He wrote in his
prepared
statement [PDF] that the report "fails to set out an adequate basis for concluding
that broadband is being deployed in a reasonable and timely basis to all Americans,
which is our directive under the statute. Instead, this report repeats past shortcomings,
relies on faulty data, and fails to present a clear picture of broadband in America."

3/19. The Federal Communications Commission (FCC) adopted,
but did not release, a Report and Order (R&O) and Further Notice of Proposed Rulemaking
(FNPRM) regarding collection of broadband subscription and availability data.

The FCC issued a short
release
[PDF] that
describes this item. It states that the FCC will "Expand the number of broadband reporting
speed tiers to capture more precise information about upload and download broadband speeds in
the marketplace", "Require broadband providers to report numbers of broadband
subscribers by Census Tract, broken down by speed tier and technology type", and
"Improve the accuracy of information the Commission gathers about mobile wireless
broadband deployment".

FCC Chairman Kevin Martin wrote in his
prepared
statement [PDF] that pursuant to this order, the FCC will "collect dramatically improved
data on broadband services", and that this "data will enable us to better identify
and analyze the deployment of broadband throughout the nation".

Commissioner Michael Copps wrote in his
prepared
statement [PDF] that "it is truly shocking that we still rely on an absurdly dated
definition of broadband speed and a 5-digit ZIP code methodology". He wrote that the just
adopted order "shows we're finally getting serious about broadband data-gathering".

Robert McDowell
(at left), the most free market oriented of the Commissioners, dissented. He wrote in his
prepared
statement [PDF] that "the majority is playing with fire by attaching subjective and,
perhaps, misleading terminology and definitions to various speeds. In short, what started out
with a sleepy bureaucratic Order may end up being a change of tectonic proportions. The
majority has not thought through the unintended consequences of its actions today."

McDowell continued that "Instead of allowing consumers to determine what is a sufficient
speed for their desired purposes, the government is drawing an arbitrary line that may favor
some technologies that are currently considered ``broadband.´´ While the concept of what is
``broadband´´ should constantly improve and evolve, these decisions are best left to consumers
and the marketplace, not unelected bureaucrats. It certainly should not be a political decision.
I fear that what the majority has wrought this morning may very well come back to haunt
us."

This item is FCC 08-89 in WC Docket No. 07-38.

FCC Order Abrogates Property Owners'
Contracts with Telcos

3/19. The Federal Communications Commission (FCC) adopted,
but did not release, a Report and Order (R&O) regarding contracts for the provision of
telecommunications services in apartment buildings. The FCC released only and brief news
release
[PDF].

The FCC's release does not disclose what statute authorizes the FCC to take this action.
Nor does the FCC's release disclose whether or not the FCC has written the R&O that it
just adopted. Nor does it state when the FCC will release the R&O. All five Commissioners
released self-congratulatory appraisals of their regulatory beneficence.

The FCC release states that this R&O "banned carriers from entering into exclusive
contracts to provide telecommunications services in residential apartment buildings, and
prohibited enforcement of existing contracts that contain exclusivity provisions".

FCC Chairman Kevin Martin wrote in his
prepared statement [PDF] that "This action follows in the footsteps of our recent
Order to prohibit similar exclusive arrangements for video services offered in apartment
buildings" and provides "regulatory parity by applying a consistent regulatory
framework across platforms".

On October 31, 2007, the FCC adopted an order that abrogates contracts between property
owners and some, but not all, video services providers. See also, stories titled "FCC
Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and
"Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in
TLJ Daily E-Mail Alert No.
1,669, November 5, 2007.

Enforcement of contracts by property owners is a matter of state law and
jurisdiction. This order regulates the activities of real estate owners, and
abrogates existing contracts.

Legal challenges brought by both property owners and cable companies to the
FCC's October order are pending in the Court of Appeals. See,
NCTA v. FCC and National Multi-Housing Counsel, et al. v. FCC, U.S. Court of
Appeals for the District of Columbia, App. Ct. Nos. 08-1016 and 08-1017.
Property owners may challenge this order also.

The FCC has not released the just adopted R&O. The FCC thereby obtains the effect of
delaying judicial review of the R&O.

The FCC's release asserts that "these exclusive agreements between carriers and
building owners hurt consumers and harm competition, with little evidence of
countervailing benefits"

In contrast, Jim Arbury, of the National Multi Housing
Council (NMHC) / National Apartment Association (NAA) Joint Legislative Program, asserted
in a
release that "Apartment owners have traditionally used exclusive
access contracts to force telecommunications providers to lower their prices and
improve their service offerings. By taking this bargaining tool away from
owners, the FCC has essentially removed a key incentive these firms had to
negotiate with apartment owners. The only losers in this decision, ironically,
are likely to be the very consumers the FCC purports to want to serve."

He added that "This is just the latest in a series of misguided attempts by the FCC
to manufacture competition through regulation instead of forcing the telecom firms to compete
for new business. And they reveal the FCC's continued lack of understanding about how the
multifamily telecommunications market actually works."

Commissioner Robert McDowell wrote
in his prepared
statement [PDF] that "I am hopeful that this decision will
spur more competition among telecommunications providers".

Commissioner Michael Copps wrote in
his
prepared statement [PDF] that "the basic point is to offer people living in multiple
tenant environments some of the same consumer benefits -- competition and choices -- as
single-family homeowners."

Commissioner Jonathan Adelstein
wrote in his
prepared statement [PDF] that "By
finding that exclusive access arrangements amount to an unreasonable practice under the
Communications Act, we remove a potential barrier that could hinder new entrants from offering
telecommunications services to residential consumers" in multi tenant environments.

The FCC's release states that the just adopted R&O is FCC 08-87 in Docket No. 99-217.
It is a Wireline Competition Bureau (WCB) item. The
October 2007 cable R&O and FNPRM is FCC 07-189 in MB Docket No. 07-51.

FCC Closes 700 MHz Auction

3/18. The Federal Communications Commission (FCC) closed
its Auction No. 73, which is also known as the 700 MHz auction, and the auction of
spectrum to be vacated by broadcasters as part of the digital television (DTV) transition. The
auction began on January 24, 2008, and included 261 rounds of bidding. The FCC
announced that it raised $19.592 Billion.

FCC Commissioner Deborah Tate stated in
a release
[PDF] that
this spectrum "will provide consumers with mobile broadband, mobile video, and other
services not yet imagined. With its excellent propagation characteristics, this spectrum may be
particularly useful in expanding advanced services in rural areas".

FCC Chairman Kevin Martin released a
statement
[PDF] that
addresses auction revenues. He wrote that "The $19.592 billion in revenue raised in the
700 MHz auction is significantly more than raised in any past FCC auction. In comparison, the
2006 Advanced Wireless Service-1 (AWS-1) Auction raised $13.9 billion."

The FCC's
Auction 66, completed in September of 2006, auctioned 90 MHz of spectrum in the 1710-1755
MHz and 2110-2155 MHz bands.

Martin continued that "The $19.592 billion generated by the
auction nearly doubled congressional estimates of $10.2 billion. All other 68
auctions conducted by the FCC in the past 15 years collectively generated a
total of only $19.1 billion in receipts."

"The proceeds generated from this auction will be transferred to the U.S. Treasury
by June 30, 2008, and will be used to support public safety and digital television transition
(DTV) initiatives." Martin's release also states that "Even with open platform and
aggressive build-out obligations, each of these blocks
sold for more than AWS-1 blocks with comparable bandwidth and license areas."

The FCC's band plan and service rules, announced on July 31, 2007, provided for the auction
of 62 MHz for commercial use within the 698-806 MHz band. The FCC plan called for the auction
of five blocks, designated A through E. These rules covered such things as reserve prices,
build out requirements, and for the C block, open devices and open applications requirements.
See also, story
titled "FCC Adopts 700 MHz Band Order" in
TLJ Daily E-Mail
Alert No. 1,619, July 31, 2007.

The A Block is 12 MHz of paired spectrum (698-704 and 728-734 MHz). It was auctioned by
Economic Areas (EA) in 176 licenses. (757-758 and 787-788, also in the A Block, have already
been auctioned, but are being relocated.) The winning bids met the reserve price, and raised
a total of $3.96 Billion.

The B Block is 12 MHz of paired spectrum (704-710 and 734-740 MHz). It was auctioned by
Cellular Market Areas (CMA) in 734 licenses. (775-776 and 805-806, also in the B Block, have
already been auctioned, but are being relocated.) The winning bids met the reserve price, and
raised a total of $9.14 Billion.

The C Block is 22 MHz of paired spectrum (746-757 and 776-787). It was
auctioned by Regional Economic Area Groupings (REAGs) in 12 licenses. (710-716
and 740-746, also in the C Block, have already been auctioned.) This spectrum
is subject to open devices and applications requirements (ODAR). The winning bids met
the reserve price, and raised a total of $4.75 Billion.

The D Block is 10 MHz of paired spectrum (758-763 and 788-793). It was to have been
auctioned as one nationwide license, and subject to a Public/Private Partnership. That is,
the plan was for a commercial licensee to build a nationwide broadband interoperable network
for use by public safety entities. However, it would then have preemptible secondary access
to the spectrum. (716-722, also in the D Block, has been auctioned.)

The E Block is 6 MHz of unpaired spectrum (722-728). It was auctioned by Economic Areas
(EA) in 176 licenses. The winning bids met the reserve price, and raised a total of $1.27
Billion.

2008 700 MHz
Auction

Description
of Licenses

Total
MHz

$ Bid
(Billions)

$/MHz
(Billions)

A Block

176 EA

12

$3.96

.330

B Block

734 CMA

12

$9.14

.762

C Block

12 REAG (ODAR)

22

$4.75

.216

D Block

1 public private

10

0

0

E Block

176 EA

6

$1.27

.212

TOTAL

62

$19.59

.316

Total without D Block

52

$19.59

.377

2006 AWS-1 Auction

A Block

734 CMA

20

B Block

176 EA

20

C Block

176 EA

10

D Block

12 REAG

10

E Block

12 REAG

10

F Block

12 REAG

20

TOTAL

90

$13.9

.154

D Block. FCC Chairman Martin's statement states that "The 700 MHz Upper D Block
of spectrum, which was dedicated to the creation of a Public Safety/Private Partnership to
create a nationwide, interoperable network, did not receive a bid that met the $1.3 billion
reserve price established for this block."

He continued that "I believe the Commission remains committed to
ensuring that we work to solve public safety’s interoperability challenges.
Because the reserve price for the D Block was not met in the 700 MHz auction,
the FCC is now evaluating its options for this spectrum."

Commissioner Tate wrote in her statement that "Now we must turn our attention to the
important work of reviewing our options for the Upper 700 MHz D block, ten megahertz of spectrum
that was designed to create a Public/Private Partnership to build a nationwide, interoperable
broadband network that would improve public safety communications. In so doing, we must keep
in mind that our nation’s first responders need advanced communications to provide their
critical, lifesaving services to citizens all across this county. I am committed
to working with Congress, my colleagues, the public safety community, and
potential service providers to find a solution that meets our common goals."

Rep. John Dingell (D-MI),
Chairman of the House Commerce Committee (HCC),
stated in a release that "The construction of a nationwide, next-generation,
interoperable broadband network for public safety is a crucial policy objective,
and the need for such a network has not diminished. The Subcommittee on
Telecommunications and the Internet will soon hold a hearing to consider this
matter further, and I intend to work closely with the Commission, public safety,
and industry as this process continues."

A collection of interest groups, including the
Media Access Project (MAP), sent a
letter
[3 pages in PDF] to the FCC on March 19, 2008, to request that the FCC "not move
immediately to reauction the D Block".

This collection of groups also includes the
Public Knowledge, Consumers
Union, Consumer Federation of America, New America Foundation, Free Press, and others.

They asked that the FCC "sever the D Block from auction 73,
reveal the results of the auction, and conduct a thorough investigation into why
the D Block failed to attract bidders. After conducting the investigation, the
Commission should place any proposed changes or remedies, including a decision
to award the D Block to the current bidder, on public notice."

They also asked that the FCC investigate "allegations
surrounding a purported meeting between Frontline, its financial backers, and
Morgan O'Brien of Cyren Call that may have had the effect of preventing
Frontline from attracting needed capital and discouraging other bidders".

C Block. The C Block is subject to open devices and applications
requirements (ODAR). Chairman wrote that "This auction provided an opportunity to have
a significant effect on the next phase of wireless broadband innovation. With the open platform
requirements on one-third of the spectrum, consumers will be able to use the wireless device
of their choice on those networks and download whatever software or applications they want on
it."

Martin added that "The open platform will help foster innovation on the edge of
the network, while creating more choices and greater freedom for consumers to
use the wireless devices and applications of their choice. A network more open
to devices and applications can help ensure that the fruits of innovation on the
edges of the network swiftly pass into the hands of consumers."

Rep. Dingell wrote that "I am pleased that the C Block exceeded its reserve price,
triggering the pro-consumer open access rules. The Committee will watch closely to ensure that
the successful bidder on the C Block remains committed to open access principles as they make
use of this valuable public asset. I am hopeful that the auction also created opportunities
for smaller and new entrants, which we'll learn when the FCC lifts the anti-collusion
rules."

Rep. Dingell also wrote that "It is my hope that the Commission quickly
closes out the auction and makes public information about winning bidders before
coordinating with Congress on developing a thoughtful plan to re-auction the D block."

Steve Largent, head of the CTIA, stated in a
release that "While the
license winners of the 700 MHz auction may not yet be known, the true winners in this auction
will be American consumers who once again will get to experience the innovation and other
valuable benefits of a truly competitive wireless marketplace."

Rep. Markey Announces Hearing on 700 MHz
Auction

3/18. Rep. Ed Markey (D-MA), the Chairman of
the House Commmerce Committee's (HCC)
Subcommittee on Telecommunications and the Internet (STI), announced that the STI
will hold a hearing that will address the results of the 700 MHz auction, which
closed on March 18, 2008.

See, related story in this issue titled "FCC Closes 700 MHz Auction".

He stated in a
release that "any new auction for the `D-block´ should be consistent with an
overarching policy goal of advancing public safety objectives and ultimately achieving a
state-of-the-art, broadband infrastructure for first responders. In developing a plan for a
re-auction of the `D-block,´ the FCC should also take into account the auction results to
gauge the level of new competition achieved."

Rep. Markey (at right) continued that
"Policymakers should also analyze whether a need for a high reserve price continues to
exist. Moreover, I believe we must fully review the nature and authority of the public safety
spectrum trust and whether this model should be retained or modified, the length of the
license term, the build-out requirements and schedule of benchmarks for such build-out, the
opportunities for ensuring further openness in wireless markets, the penalties associated with
failure to fulfill license conditions, and other issues."

He also stated that he is "eager to ascertain the extent to which new entrants have
succeeded in obtaining licenses through this auction. Providing new opportunities for
competitive entry into the wireless marketplace and offering consumers greater choice is a
key objective of wireless policy and for this auction in particular."

Rep. Markey also praised the FCC's decision to auction the C Block with open
devices and applications requirements (ODAR). He added that "forward to
monitoring implementation of this provision, which holds much promise for
fostering innovation and consumer choice".

5:00 PM. Deadline to submit comments to the
Office of the U.S. Trade Representative (OUSTR) regarding
its negotiation of "an anti-counterfeiting trade agreement to strengthen international
cooperation, enforcement practices, and participants' legal frameworks to address
counterfeiting and piracy". See,
notice in the Federal Register, February 15, 2008, Vol. 73, No. 32, at Pages
8910-8911.

Sunday, March 23

Easter.

Monday, March 24

The House will not meet.

The Senate will not meet.

Deadline to submit to the U.S. Patent
and Trademark Office (USPTO) nominations of individuals to serve on the USPTO's National
Medal of Technology and Innovation Nomination Evaluation Committee. See,
notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4182.

Deadline to submit reply comments to the
Copyright Office (CO) regarding its proposed rules
changes regarding the recordation of notices of termination and related matters. The
CO stated that these proposed changes "would communicate the Office's practices as to
notices of termination that are untimely filed; clarify the fact that a notice of termination
is not legally sufficient simply because it has been recorded; update the legibility
requirements for all recorded documents, including notices of termination; make minor
explanatory edits to the fee schedule for multiple titles within a document (adding notices
of termination as an example); and create a new mailing address to which notices of
termination should be sent." See,
notice in the Federal Register, January 23, 2008, Vol. 73, No.15, at Pages
3898-3900.

EXTENDED TO APRIL 7.Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to its Notice of Proposed
Rulemaking (NPRM) regarding pole attachments and
47 U.S.C. § 224. The FCC adopted this NPRM on October 31, 2007, and released the
text [40
pages in PDF] on November 20, 2007. This NPRM is FCC 07-187 in WC Docket No. 07-245. See,
notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at
Pages 6879-6888, and story titled "FCC Sets Comments Deadlines for Pole
Attachments NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008. See,
notice of extension in the Federal Register, February 12, 2008, Vol. 73,
No. 29, at Page 8028.

Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding
titled "In the Matter of Petition to Establish Procedural Requirements to Govern
Proceedings for Forbearance Under Section 10 of the Communications Act of 1934, as
Amended". The FCC adopted this NPRM on November 27, 2007, and released the
text [25
pages in PDF] on November 30, 2007. This item is FCC 07-202 in WC Docket No. 07-267. See,
notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Pages
6888-6895, and story titled "FCC Sets Comments Deadlines for Forbearance
NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008.

3:30 - 5:00 PM. Three concurrent panels: "Latest Developments in the
U.S. Patent Office", "Litigation Skills -- Trying Your Case to a Judge",
"Trademark Clearance and Prosecution -- Best Practices for Selection and
Strategic Protection of Brands", and "Patent Policies for International
Standards Development -- Balance and Perspectives".

Friday, April 11

8:30 - 10:00 AM. Three concurrent panels: "Patent Trolls: Are They
Down for the Count?", "Landmines, Hot Topics and Red Flags in Promotions
Law", and "The Digital Millennium Copyright Act and User-Generated
Content".

10:15 - 11:45 AM. Three concurrent panels: "Death and Texas: How to
Survive and Thrive in Patent Litigation in the Eastern District",
"Trademark Law and the Private Label Revolution", and "Gaming and
Virtual Worlds: The New Legal Frontier".

12:00 NOON - 1:30 PM. Lunch. The speaker will be Eve Burton.

1:45 - 3:15 PM. Three concurrent panels: "Show Me the Money:
Exploiting New Media Revenues", "Corporate Counsel Track: Avatars at the
Gate: How to Wield the Computer Fraud and Abuse Act to Protect Your
Trade Secrets in a World of Cyber Crimes", and "Ethics Issues Part I:
Latest Developments in IP Litigation Ethics".

3/19. President Bush named Kenneth
Wainstein Assistant to the President for Homeland Security and Counterterrorism.

As Assistant Attorney General in charge of the
Department of Justice's (DOJ)
National Security Division (NSD), he has
represented the Bush administration before the Congress on
Foreign Intelligence Surveillance Act (FISA) reform issues. He also worked on
administration efforts to obtain extensions of the search and surveillance
related provisions of the USA PATRIOT Act.

He has worked in various positions at the DOJ for almost 20 years. He has
been the Federal Bureau of Investigation's (FBI) General Counsel and Chief of
Staff. He has also been the U.S. Attorney for the District of Columbia.

President Bush stated in a White House
release that
"In his new role, Ken will coordinate our Nation's homeland security efforts to ensure
that we continue to make progress on combating terrorism, securing our borders, and
strengthening our emergency preparedness. I look forward to working with Ken to make America
safer."

3/19. President Bush announced his intent to nominate Michael Leiter
to be Director of the National Counterterrorism Center in the Office of the
Director of National Intelligence. See, White House
release.

3/19. The Federal Communications Commission (FCC) issued
a release
"soliciting nominations for state commission representatives from the National Association
of Regulatory Utility Commissioners (NARUC) for seats on the Joint Conference".

More News

3/19. President Bush gave a lengthy
speech
on the war on terrorism, without berating House Democrats for not passing a
Foreign Intelligence Surveillance Act (FISA) reform bill that he supports.

3/19. The Federal Communications Commission (FCC)
announced that it will hold another in a series of en banc hearings related to FCC Docket
Nos. 07-52 and 08-7 on Thursday, April 17, 2007, at Stanford University. The
Commission will hear from witnesses regarding "broadband network management
practices and Internet-related issues". The FCC's
notice does not identify the room, time or witnesses.

3/19. The U.S. District Court (NDCal) sentenced
Judy N. Green to serve seven and one half years in prison for rigging bids and defrauding the
Federal Communications Commission's (FCC) e-rate subsidy program. See, Department of
Justice (DOJ)
release.

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